State v. Perry
| Decision Date | 22 May 2014 |
| Docket Number | No. 2012–561,2012–561 |
| Parties | The STATE of New Hampshire v. Barion PERRY |
| Court | New Hampshire Supreme Court |
Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
The defendant, Barion Perry, appeals his convictions following a trial in Superior Court (Kissinger, J.) for theft by unauthorized taking, RSA 637:3 (2007), and burglary, RSA 635:1 (2007), arguing that the Superior Court (Nicolosi, J.) erred in denying his motion to dismiss the indictments against him on double jeopardy grounds. We affirm.
The record supports the following facts. Detectives interviewed the defendant following his arrest for theft and burglary. The interview was recorded. Prior to the defendant's first trial, counsel for the defendant and the State agreed that certain statements made by the defendant during the interview should be redacted before the recording was played for the jury.
Shortly after the State played a redacted version of the recording, defense counsel advised the trial court that three of the statements that should have been redacted were not, in fact, redacted. Although the quality of the recording was poor and portions of the interview transcript were marked "inaudible," the parties agreed that, in his first statement, the defendant apparently referred to his prior conviction for theft and burglary. In the second statement, the defendant referred to his "PO," apparently meaning his parole officer. The final statement contained a reference to prison. Defense counsel acknowledged that he had failed to request that the State redact the first two statements. However, he had requested that the third statement be redacted, but the State failed to do so.
The trial court conducted a colloquy with the defendant, during which he told the court that he had noticed "at least four or five of the jurors" looking at him when the statements were played and that he believed that they heard the references. The court stated that she had not heard the statements due to the poor quality of the recording and the acoustics in the courtroom. Nonetheless, because the attorneys and the defendant had heard the statements, the trial court assumed that at least one of the jurors also had heard them.
Defense counsel requested neither a mistrial nor a curative instruction. During the colloquy, the defendant stated that, although he did not want to be convicted because the jury heard potentially prejudicial statements in the interview, he wanted to go forward with the trial because he had "other options that ha[d] nothing to do with a mistrial." The State urged that "a mistrial be declared based on manifest necessity," notwithstanding the defendant's decision not to request one, because the statements were extremely prejudicial and affected the defendant's right to a fair trial.
Because the court was concerned that defense counsel could not effectively advise the defendant about a mistrial as counsel had failed to "mark" two of the statements for redaction prior to trial, it considered assigning independent counsel to speak with the defendant about the mistrial request. The court ultimately concluded, however, that manifest necessity required a mistrial because the jury heard "damaging," "inflammatory" information that a curative instruction would not have been able to address adequately. The court did not assign independent counsel because it concluded that, given the prejudicial nature of the unredacted statements, it "could be ineffective assistance of counsel" for another lawyer to advise the defendant not to seek a mistrial. The trial court declared a mistrial over the defendant's objection and scheduled a new trial.
Prior to the second trial, the defendant moved to dismiss the indictments with prejudice. He argued that the mistrial was not supported by manifest necessity, and, therefore, that the double jeopardy provisions of the New Hampshire and United States Constitutions barred retrial. See N.H. CONST. pt. I, art. 16 ; U.S. CONST. amend. V. The State objected, arguing that manifest necessity supported the court's declaration of mistrial because, among other things, the defendant would have had a successful ineffective assistance of counsel claim had the first trial been completed. The trial court agreed with the State, and denied the defendant's motion to dismiss.
On appeal, the defendant argues that "[t]he trial court erred in ruling that its decision to declare a mistrial over [the defendant's] objection was supported by manifest necessity’’ because the circumstances failed to satisfy the "high degree" of necessity required by the law. He specifically argues that ‘‘[t]he fact that the jury might have heard prejudicial information is insufficient to override [his] valued right to a trial before a single tribunal." He asserts that "the court was not authorized to end [his] trial over his objection" because he should have been able to "retain primary control’’ over the course of his trial, even following the introduction of prejudicial information. (Quotation omitted.) He further argues that the trial court erred by assuming that the jury heard the statements and by concluding that defense counsel was to blame for introducing the prejudice.
We first address the defendant's double jeopardy claim under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983) ; see State v. Howell, 158 N.H. 717, 719, 973 A.2d 926 (2009). "The Double Jeopardy Clause of the New Hampshire Constitution prohibits the State from placing a defendant in jeopardy more than once for the same offense.’’ State v. Ojo, 165 N.H. ––––, ––––, 89 A.3d 536, 2014 WL 683851 (decided February 21, 2014). "A defendant is placed in jeopardy when a jury is empaneled and sworn, or, in the case of a bench trial, when the judge begins to hear evidence.’’ Id. (citation omitted). "After jeopardy attaches for a particular offense, it ‘terminates’—thereby prohibiting retrial for the same offense—upon a judgment of acquittal or conviction, or upon an unnecessarily declared mistrial preventing either judgment.’’ Id. ().
Id. (quotation omitted).
"The right to complete a trial before a particular tribunal is not absolute, however, and must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments.’’ Id. (quotation omitted). "One such instance occurs when a trial court, with the greatest caution, under urgent circumstances, and for very plain and obvious causes, declares a mistrial over the objection of the defendant.’’ Id. (quotation omitted). "The Double Jeopardy Clause does not bar retrial after a mistrial when the defendant consents to the mistrial, or, if he objects, upon a finding of the trial court that there is manifest necessity for the act, or that the ends of public justice would otherwise be defeated." Id. (quotation omitted). "Under these circumstances, jeopardy does not terminate but instead continues.’’ Id.
"Although a high degree of necessity is required before a mistrial is declared, ‘manifest necessity’ is a variable standard which cannot be applied mechanically." State v. Gould, 144 N.H. 415, 417, 743 A.2d 300 (1999). "Determining whether manifest necessity exists to justify the declaration of a mistrial requires a balancing of competing concerns: the defendant's interests in completing his trial in a single proceeding before a particular tribunal versus the strength of the justification for a mistrial." State v. Solomon, 157 N.H. 47, 52, 943 A.2d 819 (2008) (quotation omitted). "A trial court must therefore take all circumstances into account, and should allow counsel to comment as well as consider alternatives before declaring a mistrial."
Howell, 158 N.H. at 720, 973 A.2d 926.
We have cautioned trial courts not to terminate trials too quickly, and have encouraged them to discuss lesser sanctions with counsel and to take time for reflection. Petition of Brosseau, 146 N.H. 339, 341, 771 A.2d 579 (2001). "Where the trial court clearly indicates on the record its findings and reasoning, we generally defer to its declaration of a mistrial." Howell, 158 N.H. at 720, 973 A.2d 926. "However, if the trial court unsustainably exercised its discretion in concluding that manifest necessity required a mistrial, then the Double Jeopardy Clause will bar retrial.’’ Solomon, 157 N.H. at 51, 943 A.2d 819. "If ... the trial court fails to make any findings or state its reasoning on the record, or otherwise fails to exercise prudence in declaring a mistrial, our deference is diminished." Howell, 158 N.H. at 720, 973 A.2d 926. "In such instances, because a mistrial is of such gravity and implicates such a fundamental constitutional right, we will defer to a trial court's finding of manifest necessity only where the record affirmatively supports it." Id. at 720–21, 973 A.2d 926 ().
Here, the trial court made its findings and stated its reasoning on the record, and it "did not act precipitously" in declaring a mistrial.
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